Abstract
This is an edited transcript of a presentation given in New Orleans on January 5, 2013, as part of the Association of American Law Schools (AALS) Aging and the Law and Trusts and Estates Joint Program.
The first set of panelists began with pedagogical concerns, including the need to explore more deeply with students the capacity issues, often subtle or variable, that can be inherent in drafting and executing planning documents, such as wills, trusts, and powers of attorney. During this first session, recently retired New York County Surrogate Court Judge Kristin Booth Glen—now Dean Emerita at City University of New York School of Law—offered her real world observation that guardianships for incapacitated elders are frequently used to accomplish “pre-mortem planning” by aspiring transferees of the disabled ward, a disturbing development worthy of future research.
Without abandoning the pedagogical theme, the second set of speakers examined the potential for conflicts of interest that occur when working across generational lines, or with older adults or disabled persons. These “conflicts” can occur in several ways, including the potential for conflict between joint account holders, fiduciaries and beneficiaries, and lawyers and clients. University of Illinois Law Professor Richard Kaplan provided practice-based exercises for the classroom in the form of two planning scenarios that pose the potential for conflicts of interest, which are captured as appendices in the transcript. A sobering additional observation about the “surge in intra-family conflict/abuse cases” was offered by Lenore Davis, Esq., from her perspective as a private attorney with an estate practice in New York and New Jersey, thus emphasizing the conflict potential among family members struggling to make sense of their care-giving and care-receiving roles.
Finally, in the third segment, University of Pittsburgh Law Professor Lawrence Frolik focused on the use of “trust protector clauses,” language that anticipates the possibility of concerns about capacity, conflict, and change in estate planning documents. Professor Frolik also cautioned wisely that, in elder law, we may have to “pull back” from what was once a dominant focus on Medicaid planning and instead concentrate on the larger issues of protection, including the best interests of the older adult.
The first set of panelists began with pedagogical concerns, including the need to explore more deeply with students the capacity issues, often subtle or variable, that can be inherent in drafting and executing planning documents, such as wills, trusts, and powers of attorney. During this first session, recently retired New York County Surrogate Court Judge Kristin Booth Glen—now Dean Emerita at City University of New York School of Law—offered her real world observation that guardianships for incapacitated elders are frequently used to accomplish “pre-mortem planning” by aspiring transferees of the disabled ward, a disturbing development worthy of future research.
Without abandoning the pedagogical theme, the second set of speakers examined the potential for conflicts of interest that occur when working across generational lines, or with older adults or disabled persons. These “conflicts” can occur in several ways, including the potential for conflict between joint account holders, fiduciaries and beneficiaries, and lawyers and clients. University of Illinois Law Professor Richard Kaplan provided practice-based exercises for the classroom in the form of two planning scenarios that pose the potential for conflicts of interest, which are captured as appendices in the transcript. A sobering additional observation about the “surge in intra-family conflict/abuse cases” was offered by Lenore Davis, Esq., from her perspective as a private attorney with an estate practice in New York and New Jersey, thus emphasizing the conflict potential among family members struggling to make sense of their care-giving and care-receiving roles.
Finally, in the third segment, University of Pittsburgh Law Professor Lawrence Frolik focused on the use of “trust protector clauses,” language that anticipates the possibility of concerns about capacity, conflict, and change in estate planning documents. Professor Frolik also cautioned wisely that, in elder law, we may have to “pull back” from what was once a dominant focus on Medicaid planning and instead concentrate on the larger issues of protection, including the best interests of the older adult.
| Original language | English (US) |
|---|---|
| Pages (from-to) | 987-1036 |
| Number of pages | 50 |
| Journal | Penn State Law Review |
| Volume | 117 |
| State | Published - 2013 |